Special circumstances
| Notion(s) | Filing | Case |
|---|---|---|
| Decision on Provisional Release on Compassionate Grounds - 02.04.2008 |
STRUGAR Pavle (IT-01-42-A) |
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11. As recalled above, “[t]he specificity of the appeal stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that ‘special circumstances exist warranting such release’”.[1] In this regard, the Appeals Chamber emphasizes that the fact that some accused have been granted provisional release for comparable reasons pending their trial[2] cannot be automatically applied by analogy to persons who have already been convicted by a Trial Chamber and who are seeking provisional release pending the appellate proceedings.[3] Moreover, the Appeals Chamber has repeatedly reiterated that the discretionary assessments of the requirements under Rule 65 are made on a case-by-case basis.[4] Therefore, Strugar’s arguments concerning the comparison of his situation with that of the accused pending trial in the Prosecutor v. Milutinović et al. case (IT-05-87-T) cannot be seen as determinative. 12. In situations where an application for provisional release is made pending the appellate proceedings, the Appeals Chamber has concluded that special circumstances related to humane and compassionate considerations exist where there is an acute justification, such as the applicant’s medical need or a memorial service for a close family member.[5] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[6] While the Appeals Chamber agrees with Strugar that there is no finite list of situations which may qualify as special circumstances for the purposes of Rule 65(I)(iii) of the Rules, it considers the notion of acute justification to be inextricably linked to the scope of special circumstances which could justify provisional release on compassionate grounds at the appellate stage of the proceedings before the Tribunal. It is precisely for that reason that justifications such as wanting to spend time with family[7] or to visit a close relative in poor health condition[8] have explicitly not been recognized as special circumstances under Rule 65(I)(iii) of the Rules. [1] Brđanin Decision citing Simić Decision of 21 October 2004. [2] E.g. Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Decision on Šainović Motion for Temporary Provisional Release, 7 June 2007, where the Trial Chamber granted provisional release on compassionate grounds to allow the accused to visit his aged mother suffering from serious ill health while her prognosis was highly uncertain. [3] See supra, para. 3, last sentence. [4] E.g., Prosecutor v. Jadranko Prlić et al., case No. IT-04-74-AR65.5, Decision on Prosecution’s Consolidated Appeal Against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and Ćorić, 11 March 2008 para. 7. [5] Brđanin Decision, para. 6; Limaj et al. Decision of 1 September 2006, p. 1; Simić Decision of 5 May 2006, p. 3; Limaj et al. Decision of 20 April 2006, p. 2; Galić Decision, para. 15; Simić Decision of 21 October 2004, para. 20; see also, in the present case, Decision on “Defense Motion: Defense Request for Provisional Release for Providing Medical Aid in the Republic of Montenegro”, 16 December 2005, p. 2. [6] Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Decision on Dario Kordić’s Request for Provisional Release, 19 April 2004, para. 12 (terminal illness); Kordić and Čerkez Decision, paras 5, 11, 12, where the provisional release was refused for lack of certainty that the applicant would return in the Tribunal’s custody, subject however to the fact that in “case of exceptional circumstances such as e.g. a substantial deterioration of the health conditions of Dario Kordić’s mother the Defence may submit a detailed request for a temporary controlled visit to his mother”. [7] Simić Decision of 21 October 2004, para. 21. [8] See Brđanin Decision, para. 6, referring to Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Order of the Appeals Chamber on the Motion for Provisional Release by Miroslav Kvočka, 11 September 2002, p. 4. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 04.04.2012 |
RAŠIĆ Jelena (IT-98-32/1-R77.2-A) |
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(i) Being the only woman detained at the UNDU11. The Appeals Chamber notes Rašić’s submission that, as the only female detainee at the UNDU, “[h]er detention is consequently a form of quasi-solitary confinement which, though not intended as punitive, threatens to substantially impact her well-being”, and that “[t]his is true particularly in the context of her ongoing psychological condition.”[1] The Appeals Chamber further notes that, in its Sentencing Judgement, the Trial Chamber considered that the fact that Rašić was the only female detainee at the UNDU constituted “special circumstances”.[2] However, the Trial Chamber’s findings in this respect were aimed solely at establishing mitigating factors in sentencing, and supported its decision to consider in mitigation her “good behaviour in detention”.[3] In the Appeals Chamber’s view, the fact that Rašić is the only woman detained at the UNDU does not constitute “special circumstances” pursuant to Rule 65(I)(iii) of the Rules. (ii) Serving the entirety of a custodial portion of a sentence12. However, the Appeals Chamber recalls that, as of 16 March 2012, Rašić has served the entirety of the custodial portion of her sentence. She was therefore eligible for release on 16 March 2012, were it not for the pending appeal,[4] In the Appeals Chamber’s view, this constitutes a special circumstance that, when assessed in conjunction with Rašić’s fulfilment of the other requirements of Rule 65(I) of the Rules, warrants granting her provisional release. The jurisprudence of the Tribunal supports this conclusion,[5] and the fact that contempt proceedings are governed by an expedited regime does not militate against granting provisional release where circumstances warrant it. As such, the Appeals Chamber finds that special circumstances warranting Rašić’s provisional release have been established. [1] Motion [Jelena Rašić’s Urgent Motion for Provisional Release Pursuant to Rule 65(I), 14 March 2012 (public with a confidential annex)], para. 7. See also Reply [ Jelena Rašić’s Reply to the Prosecution’s Response to Urgent Motion for Provisional Release Pursuant to 65(I), 20 March 2012 ], para. 4. [2] Sentencing Judgement [Prosecutor v. Jelena Rašić, Case No. IT-98-32/1-R77.2, Written Reasons for Oral Sentencing Judgement, 6 March 2012], para. 27. [3] Sentencing Judgement, para. 27. [4] According to Rule 102(A) of the Rules, the sentence shall begin to run from the day it is pronounced, but as soon as notice of appeal is given, the enforcement of the judgement shall thereupon be stayed until the decision on the appeal has been delivered, the convicted person meanwhile remaining in detention. [5] See, e.g., Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Decision on Motion of Astrit Haraqija for Provisional Release, 8 April 2009, para. 12; Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Decision on Motion of Bajrush Morina for Provisional Release, 9 February 2009, para. 10; Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Decision on the Motion of Veselin [ljivančanin for Provisional Release, 11 December 2007, p. 4; Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Decision on Motion on Behalf of Enver Hadžihasanović for Provisional Release, 20 June 2007, para. 13; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on the Request for Provisional Release of Miroslav Kvočka, 17 December 2003, p. 3. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 25.05.2009 |
HARADINAJ et al. (IT-04-84-A) |
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16. […] the Appeals Chamber recalls that detention for a substantial period of time may amount to a special circumstance within the meaning of Rule 65(I)(iii) of the Rules.[1] A determination must, however, be made on a case-by-case basis.[2] In the context of this case, taking into account that a date for hearing the appeal has not yet been set, as well as the good behaviour shown by Brahimaj whilst in detention, the fact that Brahimaj’s past period of provisional release did not give rise to any concerns and the fact that he has served two-thirds of his sentence, the Appeals Chamber finds that special circumstances warranting Brahimaj’s provisional release have been established.[3] [1] Prosecutor v. Astrit Haraquija and Bajrush Morina, Case No. IT-04-88-R77.4-A, Decision on Motion of Astrit Haraqija for Provisional Release, 8 April 2009, para. 12; Prosecutor v. Astrit Haraquija and Bajrush Morina, Case No. IT-04-88-R77.4-A, Decision on Motion of Bajrush Morina for Provisional Release, 9 February 2009 (“Morina Decision”), para. 10; [Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Decision on Motion on Behalf of Enver Hadžihasanović for Provisional Release, 20 June 2007 (“Hadžihasanović Decision”)], para. 13 (noting that the Appeals Chamber was “satisfied that detention amounting to approximately two-thirds of a term of imprisonment is sufficiently substantial to constitute a special circumstance”); Šljivančanin Decision, p. 3 (noting that the fact that Šljivančanin had served 90 percent of his sentence imposed by the Trial Chamber constituted a special circumstance); Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Kvočka’s Request for Provisional Release, 17 December 2003, pp. 3-4 (noting that the fact that Kvočka had served around 80 percent of the sentence imposed by the Trial Chamber amounted to a special circumstance). [2] Hadžihasanović Decision, para. 13. [3] See Morina Decision, para. 10; Hadžihasanović Decision, para. 13. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 08.04.2009 |
HARAQIJA & MORINA (IT-04-84-R77.4-A) |
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12. The Appeals Chamber has already determined in this case, with respect to Haraqija’s co-accused Bajrush Morina, that the fact that an appellant would have already served the entire sentence imposed by the Trial Chamber were it not for the filing of the notices of appeal may constitute a special circumstance.[1] As Haraqija is in the same position, the Appeals Chamber also considers that special circumstances exist warranting his provisional release. [1] Morina Provisional Release Decision, para. 10. See also Prosecutor v. Mile Mrksić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on the Motion of Veselin Šljivančanin for Provisional Release, 11 December 2007, p. 3 (noting that the fact that Šljivančanin had served 90 percent of his sentence imposed by the Trial Chamber constituted a special circumstance); Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Kvočka’s Request for Provisional Release, 17 December 2003, pp. 3, 4 (noting that the fact that Kvočka had served around 80 percent of the sentence imposed by the Trial Chamber amounted to a special circumstance). |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 29.04.2008 |
MILOŠEVIĆ Dragomir (IT-98-29/1-A) |
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7. In previous cases, the Appeals Chamber has found special circumstances where there is an acute justification, such as the applicant’s medical need or a memorial service for a near family member.[1] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[2] Where a convicted person simply “wishes to spend time with his family”[3] or seeks to visit a close relative in poor health,[4] the Appeals Chamber has refused the application upon the grounds that such reasons are not sufficient to establish special circumstances. In the present case, the medical evidence presented by Mr. Milošević indicates that [REDACTED].[5] The Appeals Chamber considers that even if [REDACTED], there is no suggestion of an acute crisis or of life-threatening medical condition that constitutes a “special circumstance” warranting provisional release. Further, Mr. Mi1ošević’s request to attend his son’s wedding is not a “special circumstance” within the meaning of Rule 65(I)(iii) of the Rules and under the Appeals Chamber’s jurisprudence. In light of the foregoing, the Appeals Chamber finds that Mr. Milošević fails to show the existence of “special circumstances” under Rule 65(I)(iii) of the Rules and does not therefore deem it necessary to assess whether the requirements of Rule 65(I)(i)-(ii) are satisfied. [1] Brðanin Decision, para. 6 [Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-A, Decision on Radoslav Brðanin’s Motion for Provisional Release, 23 February 2007]; Galić Decision, para. 15 [Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Defence Request for Provisional Release of Stanislav Galić, 23 March 2005]; Simić Decision, para. 20 [Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Motion of Blagoje Simić Pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Services for his Father, 21 October 2004]. [2] Knojelac Decision, pp. 2-3 [Prosecution v. Milorad Krnojelac, Case No. IT-97-25-A, Decision on Application for Provisional Release, 12 December 2002]; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on the Renewed Defence Request Seeking Provisional Release on Compassionate Grounds, 15 April 2008, para. 11. [3] Simić Decision [Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on the Grounds of Compassion, 2 April 2008, Public Redacted Version], para. 21. [4] Strugar Decision, para. 13; Brðanin Decision, para. 6, referring to Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Order of the Appeals Chamber on the Motion for Provisional Release by Miroslav Kvočka, 11 September 2002. [5] Confidential Attachment D to the Application. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 22.05.2009 |
MILUTINOVIĆ et al. (IT-05-87-A) |
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9. The Appeals Chamber recalls that the specificity of provisional release at the post-trial stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that “special circumstances exist warranting such release”.[1] For reasons described in paragraph 2 above, the Appeals Chamber will consider that, for the purposes of this decision, the appellate proceedings in this case are pending before it. In such situations, the Appeals Chamber has concluded that special circumstances related to humane and compassionate considerations exist where there is an acute justification, such as the applicant’s medical need or a memorial service for a close family member.[2] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[3] The Appeals Chamber has also emphasized that “the fact that some accused have been granted provisional release for comparable reasons pending their trial cannot be automatically applied by analogy to persons who have already been convicted by a Trial Chamber and who are seeking provisional release pending the appellate proceedings.[4] Finally, because “the notion of acute justification [is] inextricably linked to the scope of special circumstances which could justify provisional release on compassionate grounds at the appellate stage”, justifications such as wanting to spend time with family have explicitly not been recognized as special circumstances under Rule 65(I)(iii) of the Rules.[5] [1] Decision of 2 April 2009, para. 8; Strugar Decision of 15 April 2008, para. 10. [2] Decision of 2 April 2009, para. 8; Strugar Decision of 2 April 2008, para. 12 referring to, inter alia, Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Radoslav Brđanin’s Motion for Provisional Release, 23 February 2007, para. 6; and Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Motion of Blagoje Simić Pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Services for His Father, 21 October 2004, para. 20. [3] Decision of 2 April 2009, para. 8; Strugar Decision of 15 April 2008, para. 10. [4] Decision of 2 April 2009, para. 8; Strugar Decision of 2 April 2008, para. 11. [5] Decision of 2 April 2009, para. 8; Tarčulovski Decision, para. 8; Strugar Decision of 2 April 2008, para. 12. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 23.02.2016 |
TOLIMIR Zdravko (MICT-15-95-ES) |
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9. The Appeals Chamber recalls that special circumstances warranting provisional release related to humane and compassionate considerations have been found to exist where there is an “acute justification”, such as a medical need, a memorial service for a close family member, or a visit to a close relative in extremely poor health whose death is believed to be imminent.[1] Requests premised solely on the combination of advanced age and poor health, for example, have not met the threshold of “acute justification” in the absence of demonstration of the existence of an acute crisis or a life threatening medical condition.[2] […] 11. […] [T]he fact that Tolimir is away from his family in this present situation also does not constitute “special circumstances”.[3] In this respect, the Appeals Chamber recalls that, in accordance with the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal (“Rules Governing Detention”),[4] Tolimir is entitled to communicate with his family or other persons and to receive visits from them subject to certain restrictions and conditions.[5] […] [1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Public Redacted Version of the “Decision on Valentin ]orić’s Motion Seeking Provisional Release” Issued on 12 March 2015, 14 May 2015 (“Prlić et al. Decision”), para. 12; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release, 13 May 2013 (“Šainović et al. Decision of 13 May 2013”), p. 2; Borovčanin Decision [Decision on Appeal from Decision on Ljubomir Borovčanin’s Request for Provisional Release, 1 March 201], para. 10. [2] See, e.g., Prlić et al. Decision, para. 12. This standard has also been applied in the context of a convicted person’s request to visit a close family member with medical conditions. See Borovčanin Decision, para. 10; Prosecutor v Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Application for Provisional Release pursuant to Rule 65(I), 29 April 2008 (public redacted version), paras. 5, 7; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on Grounds of Compassion, 2 April 2008 (public redacted version) (“Strugar Decision”), paras. 5, 13; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Radoslav Brđanin’s Motion for Provisional Release, 23 February 2007, para. 6. [3] Cf. Šainović et al. Decision of 3 September 2010 [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Third Motion for Provisional Release on Compassionate Grounds, 3 September 2010], para. 11; Prosecutor v. Milan Milutinović et al., Public Redacted Version of the “Decision on Vladimir Lazarević’s Second Motion for Temporary Provisional Release on the Grounds of Compassion” Issued on 21 May 2009, 22 May 2009, para. 9; Strugar Decision, para. 12. [4] IT38/Rev.9, 21 July 2005. The Rules Governing Detention of the ICTY apply mutatis mutandis to individuals subject to the jurisdiction of the Mechanism. [5] Rules 58, 61 of the Rules Governing Detention. |
IRMCT Rule Rule 68(I) | |